The controversy occasioned by the dismissal of the governors of four states has once again thrown up a complicated set of issues. This controversy ought to be the cause of concern amongst citizens of all political persuasions. Even citizens who loath the Bharatiya Janata Party and think of the Rashtriya Swayamsevak Sangh as an ideological menace ought at least to feel conflicted about what has just transpired. It would be unwise to settle the question of the constitutional propriety of the Centre’s actions merely with reference to the ideological persuasion of the governors concerned or with unduly narrow interpretations of the Constitution. For in a democratic government, forms ought to matter since, in the final analysis, these are our only protection against arbitrary decisions.
That the office of the governor has become politicized is beyond doubt. But this politicization dates back to as early as 1952 and the first major controversy over the governor’s role is still instructive. The governor and Congressman, Sri Prakash, invited C. Rajagopalachari to become chief minister. This was despite the fact that the United Front under T. Prakasam had won more seats than the Congress and Rajagopalachari had not even been elected to the legislature, but was nominated to the upper house. Jawaharlal Nehru and Rajendra Prasad both opposed Rajagopalachari’s becoming chief minister.
Nehru made two points. First, that the Congress must avoid giving the impression that “we stick to office and want to keep others out at all costs”. His second worry was that inviting a “nominated member to form a government is open to the criticism of being against the spirit of the parliamentary system, for the member has no support and therefore no mandate from the electorate”. But Nehru and Rajendra Prasad were unable to undo events.
This controversy highlighted in miniature the issues that have subsequently dogged the office of the governor. The first issue is: to what extent ought governors to exercise their discretion' What should be the norms that govern the conduct of governors' The second issue is: what should be the Central government’s relationship to governors already appointed' Although related, these are, in principle, two somewhat independent issues. Nehru clearly thought that while the governor had not acted with propriety, the Centre still had no easy right to intervene, even though the governor was of his own party. Thus it is possible to hold the view that governors have not always acted with propriety and to still insist that governors be given full autonomy and constitutional protection.
Much has been made of the claim that the governors serve at the pleasure of the president, and by implication the government of the day. But this is not all there is to the story. The Supreme Court has unanimously ruled that just because the governor is appointed by the president and holds office at the president’s pleasure “does not make the Government of India an employer of the Governor”. In Hargovind versus Raghukul Tilak, the Supreme Court asserted that the governor is not amenable to the directions of the government of India, nor is he accountable to them for the manner in which he carried out his functions and duties. His is an independent constitutional office which is not subject to the control of the government of India.
In other words, the governor is a head of a state whose independence has to be secured, both from political forces within the state and also the Centre. Many proposals — ranging from the requirement that the governor be from out of the state, to the requirement that he be given one fixed term and one fixed term only — have been discussed in numerous committees and commissions. But it is difficult to imagine that the independence and dignity of the office can be secured if the phrase “serves at the pleasure of the president” is interpreted so literally as to facilitate the removal of governors almost at will.
There are a few other bad arguments that have been used to justify the dismissal of governors. It is often claimed that changing governors is standard political practice, that the opposition has done the same. But one would have thought that a new government would want to live up to better constitutional conventions, not live down to the worst political ones. The second argument given is that the incumbents in question were political appointees. This charge is more insidious than is being recognized. First, the line between political and non-political is itself a political judgment; it is not a self-evident distinction. Second, being “political” cannot be a disqualification from office in a democracy. The issue is the conduct of the relevant person in office, the manner in which they have discharged their duties. The equation of political with bad and non-political with good is either meaningless or rests on a dangerous fallacy.
Third, the relevant governors are said to have had strong links with the RSS. But this is a tricky issue. I am as opposed to the RSS and the BJP as anyone, but it is stretching the proprieties of constitutional discourse to suggest that anyone with affiliation to these organizations is automatically disqualified from holding office. So long as these organizations are legal, and so long as the individuals concerned have not been implicated in any crime, they ought not to be automatically debarred from office. Any democracy has to wrestle with difficult questions about the extent to which it should tolerate those whose ideological persuasions are at some level incompatible with constitutional values, whether they be from the revolutionary left or virulent right. But if we make ideological persuasion a litmus test for continuance in office, we jeopardize the project of creating a free society. Freedom, if it is meaningful, has also to mean freedom for the thought we hate, provided all the constitutional values are being protected.
The bar for removing governors cannot be merely ideological leaning. We have to demonstrate how those leanings made an impact on their functioning in office. In short, there has to be some specific charge to justify removal. In the absence of such a specific charge, mockery is made of the office of the president. Admittedly, the governors serve at the pleasure of the president, but the changing pleasure of the president ought at least to refer to some specific misconduct on the part of governors, or his pleasure comes across as fickle indeed.
Besides, from a Congress point of view, the removal of governors is bad politics. It quickly took the focus off their governance agenda, including an important speech the prime minister made on decentralization. It raised the old bogey of the Congress’s weakness on issues of federalism. The ubiquitous use of phrases like “purge” reminds citizens more of Stalinist politics than liberal norms. It gives the BJP and RSS the only issue they thrive on, the sense of victimhood. Most citizens ought to hope that the ideological agendas of the BJP are defeated forever, but defeating them will require not just muscle power but also political tact. And most of all it will require convincing the electorate that we finally have a government in power that thinks of long-term constitutional proprieties, whose own actions are above the taint of narrow partisanship. This government has a unique opportunity to transcend a politics of polarization. As Nehru understood, this sometimes requires self-restraint and tolerance, even of those whom we have good reason to suspect.